Problem
The Commonwealth is the dominant partner in the federation, having specific Constitutional powers over certain areas, such as trade and commerce, foreign affairs, defence, taxation, and bankruptcy. This is known as the federal principle. The States, however, retain their own powers, such as control over education, health, and local government.
The Commonwealth has the power to legislate for the whole of Australia, but the legislation must be agreed upon by both the Commonwealth and the States. This ensures that the powers of each remain distinct and that the State governments are not completely subordinate to the Commonwealth.
The Commonwealth and States also share the power to make and enforce laws. This includes the power to make laws on the same subject matter, as long as the laws do not contradict each other. This means that both the Commonwealth and States can pass laws in areas such as taxation, quarantine, and censorship.
The sovereignty of the Commonwealth and State governments is thus a shared sovereignty, with the Commonwealth having some additional powers not shared by the States. This system ensures that the powers of each remain distinct and that the States are not completely subordinate to the Commonwealth.
The question:
In order to determine whether Kim is guilty of an offence under s 5, a Court must decide what the word 'encourages' means.
1. Does starting with the text of s 5 reflect the rule of law? Provide reasons for your response.
2. What does the Explanatory Memorandum say about the meaning of s 5? What are the limits of relying on the Explanatory Memorandum to determining the meaning of s 5?